Settlement offer does not quell quest for justice

Nearly two years have passed since 28-year-old Marine veteran James Whitehead was fatally shot outside an Orange auto parts store by off-duty police Captain Robert Arnold, yet the legal battles surrounding the homicide are far from over. A financial settlement was tentatively awarded to the family this month, but the survivors said they would rather have justice than money.

“I think about James every day,” Whitehead’s sister, Brandy Boyett, said as she and her family readied to persevere through yet another birthday without her little brother around to share in the celebration. “It really makes me sad for his daughter, too, because everyone needs a dad.”

Boyett is still grieving the loss she felt when a bullet struck her brother’s chest as he leaned back in the passenger seat of a pick-up truck at O’Reilly Auto Parts in Orange, killing him. Whitehead was unarmed, trying to leave the scene of a heated verbal altercation when the incident occurred. Boyett has relived the moment time and time again – hearing the gory details while sitting through arbitration and mediation hearings, interviews with investigators and attorneys, and while researching what can be done to bring her brother’s killer to justice.

“This whole thing has been a nightmare,” she said. Still, she can’t wake up. According to Boyett, this horrible, horrible dream won’t be over until her brother’s killer is called to account for his actions.

Hope for justice in the courtroom was all but lost when Orange County District Attorney John Kimbrough brought the case before a grand jury but failed to secure an indictment on the shooter after not calling a single eyewitness to the stand. In the days following the grand jury’s “no bill,” then-Orange Police Chief Sam Kittrell released a 36-page report detailing the improper actions taken by Captain Arnold when he shot the unarmed civilian. At that time, Arnold was placed on indefinite leave. But neither the Whitehead family nor Arnold was satisfied with the rulings. Both sides have since waged civil court battles, and a group dubbed Justice for James has been actively seeking Arnold’s criminal prosecution.

Reinstated

Robert Arnold, using the opportunities afforded to him as a civil servant, petitioned for an independent arbitrator to rule on a request to be reinstated to his position on the Orange Police force. Arnold alleged his civil servant rights had been violated by investigators failing to inform the police captain that he was under investigation for the fatal shooting.

Michael Grossi, an out-of-state police officer trainer and Arnold’s expert witness for the arbitration hearing, told the arbitrator, “I was surprised to see that he wasn’t terminated for excessive force,” but concluded, based on reading statements, that Arnold was justified in shooting Whitehead that July day in 2010. Grossi was paid between $7,500 and $8,000 for his testimony, he said. Grossi was the only witness to say Arnold had acted correctly.

Forensic pathologist and medical examiner Tommy Brown said Arnold was no more than 8 inches, possibly even less than 6 inches, from Whitehead when the fatal shot was fired – a close proximity for an officer to be in if he felt he were in danger, Orange Police Department investigators pointed out.

According to the John Cash Smith, the attorney representing the city of Orange during the arbitration hearing, “We believe, by more than a preponderance of the evidence, that it was a killing, not what police call a ‘good shooting.’”

Still, the arbitrator ruled that Arnold had not been informed there was an investigation into his actions, and ordered the officer put back to work. The city of Orange is appealing the ruling, and has refused to put Arnold on the streets of Orange with a badge and gun.

“Arnold used incredibly bad judgment, and because of that, lives were ruined,” Smith said of behalf of the city. And, Smith said, Whitehead “had his life snuffed out by actions by this police officer.

“The gist of this from the standpoint of the city of Orange and the City of Orange Police Department — this should never have happened.”

Money can’t buy love

“You’re goddamn right I shot you.” According to testimony from eyewitness Randy Edwards, those are the last words Whitehead would have heard from his killer before he expired in the parking lot.

The thought of such a horrible end to a war hero’s life sickens Boyett, who said she was even more sickened by the implication her brother caused his own death.

“He was disorderly, sure,” she admits. “He didn’t deserve to die for that, though. And, to think of his killer walking free, maybe even being allowed to shoot someone else as he works in the streets as a ‘peace officer,’ is just appalling.”

Whitehead’s family – mother Diana Franken, father Vernon Ray Whitehead Sr., daughter, and common law wife, Karlan – petitioned a federal civil court in Beaumont via a wrongful death suit against Arnold and the city of Orange. Mediation in Judge Thad Heartfield’s court with all parties has recently made headway, with a tentative agreement struck. The final judgment will be declared next month, according to sources close to the case.

Whitehead’s only child will receive 60 percent of the financial settlement award, each parent will be allotted 15 percent and the wife will get 10 percent. Jennifer Hughes, the minor child’s mother, said the family was forced to take the mediation offer, having been strong-armed by Arnold’s attorney.

“They said if we didn’t take the offer, when we got our ruling they would take it to appeals court in New Orleans and get it overturned.” Hughes’ attorney told his client that, due to the laws governing civil servants in Louisiana offering blanket immunity, Arnold’s council would prevail. “They had us bent over a barrel; we had no choice but to accept the offer.”

Although Hughes couldn’t comment on the settlement amount, sources suggest the dollar amount could be in excess of $600,000.

No backing down

“We don’t have anything to do with their civil case; we’re not interested in the money, although I think (Whitehead’s) daughter deserves it to help take of her,” Justice for James leader and Veteran Services officer Ken Cavaretta said. “We want to see justice done for this Marine veteran who served his country as a hero only to come home and get shot down in cold blood.”

Cavaretta has been instrumental in garnering public support in an effort to have the homicide re-examined in criminal proceedings. Cavaretta and Justice for James supporters conducted a rally on the steps of the Orange County Courthouse calling for the removal of District Attorney Kimbrough, have championed the cause in neighboring communities and veteran functions, and are seeking federal assistance in furthering prosecution on allegations Arnold deprived Whitehead of his civil rights.

“We really believe in this,” Cavaretta said. “We won’t stop until we’ve exhausted all our avenues, and there are a lot of us involved in this call to action.”

‘60 Minutes’

Most recently, Cavaretta has reached out to the CBS news show “60 Minutes,” an opportunity afforded when he was interviewed by the TV crew about a Veteran’s Court project he has spearheaded in Harris and Jefferson counties.

“Seeing James’ killer brought to justice is always on my mind,” he said. “I try to use any avenue I can to get the word out that such an injustice as this is going on. Like I said, we really believe in this.”

60 Minutes reporter Ashley Velie requested all Cavaretta’s information on the case to investigate the matter further. In the meantime, the Justice for James group is planning a second rally to be held at the Orange County Courthouse in late summer.

“We have to expose what’s going on here,” Cavaretta said. “We have a killer walking the streets. We need a prosecutor that is willing to stick with a case and do the right thing.”

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